T. D. Rowe one &c. v. Caleb Wilson. - This was an action brought to recover a compensation in damages for slanderous words used by defendant, of and concerning the plaintiff, to the following effect, that Rowe was a perjured rascal and a scoundrel, and that he had conspired with John Stephen, Judge, and T. McVitie and W. J. Brown, to rob him of £600. The damages were laid at £1000.

The defendant pleaded the general issue. Not Guilty.

After a number of witnesses had been heard, with the various speeches of the Barristers employed on the occasion,

The learned Judge then summed up, calling upon the Jury to dismiss from their minds any thing they might have heard out of Court relative to this case, but coolly and calmly to consider it, as it was of vital importance both to plaintiff and the defendant. There were three points for their consideration in this case; 1st. Were they satisfied that any of the words proved were spoken? In support of this, there was the evidence of Mr. Williams, and two other witnesses, if they could believe their evidence; then 2dly. What was the sense and meaning with which they were used by defendant? If they were satisfied that they were spoken in the sense used in the declaration, then came the question, what damages plaintiff ought to recover? If they were satisfied the words were spoken calmly and deliberately with an intent to injure the plaintiff, then he could not say that it was a case for very moderate damages, but if they considered the words had been spoken in the heat of passion then perhaps they would look at it in a different light.[2]

The Jury having retired, came into Court after a short time and observed, that they found the words were spoken, but as mere common abuse, were they obliged to find for plaintiff under those circumstances?

Judge Dowling. - If advisedly and deliberately spoken of, and concerning a professional man, although mere abuse, then he is entitled to your verdict.

Foreman. - We find for plaintiff, Damages One Farthing. - Messrs. Norton Foster and Keith, for plaintiff, Messrs. Wentworth and Allen for defendant.

Monday.- The Chief Justice and Judges Dowling and Burton took their seats in banco this morning.

Rowe, one, &c. v. Wilson. - This was an action of slander, tried last term before Dowling, Judge and a Special Jury, when a verdict was found for the plaintiff, - Damages, One Farthing.

Mr. Keith, for plaintiff, now moved for a new trial on the following grounds :- 1st, That the verdict was not in accordance with the evidence. - 2d, That the Jury did not believe the words used to be mere common abuse; and if they considered defendant spoke them deliberately and advisedly, plaintiff was entitled to have recovered a verdict to a larger amount. - 3d, That the words could not be mere common abuse ; and it was proved in evidence defendant had used them in Sydney as well as at Hunter's River. - 4th, That Mr. W. Hutchinson had been duly subp¿naed, but was not in attendance at the time of trial, and he could have shewn the malicious intention of defendant ; - and, 5th, That this was not a case in which moderate damages should have been given ; and therefore a new trial should be granted on the ground of the smallness of the damages.

Mr. Keith was about to urge his reasons, when he was stopped by the Chief Justice, who wished him, before he proceeded, to point out a case where the smallness of damages was a ground for a new trial. The case appeared to him to be without a precedent. The verdict could not be said to be contrary to the evidence, as it was for plaintiff. Mr. Keith could not produce an authority. The Chief Justice was decidedly against entertaining the case. The Jury had, no doubt, been influenced by the arguments of Counsel in finding their verdict, that the words were spoken without point or object, but were mere unmannerly expressions, and he thought the Jury had acted properly by putting an end to the case. As to the present motion, the whole principal of law was the other way. New trials might be granted when the damage was excessive, but never on the ground of their smallness. If an evident mistake, in a calculation of accounts, had been made, a verdict might be increased, or a new trial granted, but not in a case like the present.

Judge Burton was of opinion that to grant a new trial, in this case, would be to interfere with the province of the Jury. It was never done from the smallness of the damages, but might be when they were excessive. Very few men were more exposed to abuse than professional men, and Judges too, for the losing party always considers himself deeply injured ; and if actions were brought for all the abuse used on such occasions, it would occur in almost every case ; but when it did come before the Court, it was the province of the Jury to decide upon it. No doubt the Jury considered that, as £100 was given in this case on a previous occasion, it was not necessary to do so then, and by giving the verdict they did, so to set the case at rest. Motion refused.

Forbes C.J., Dowling and Burton JJ, 4 November 1833

Source: Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266

[p. 171][4] This was an action of Slander, & the Jury gave the Plf a farthing in damages.

[p. 171]Keith now moved for a new trial on the ground that the damages were not adequate to the injury sustained.

Forbes C.J. It is no ground for a new trial that the damages found by the Jury are too small. It would be contrary to all the authorities to hold otherwise. It would be interfering with the province of the Jury to disturb their verdict, either on the ground of smallness or excess of damages. The court even in the latter case would never interfere unless in a case of outrageous excess. The Jury alone are competent to determine a question of damage.

Notes

[1] See also Australian, 5 July 1833; Dowling, Proceedings of the Supreme Court, Vol. 85, State Records of New South Wales, 2/3266, p. 56. On earlier proceedings in March 1833, see Proceedings of the Supreme Court, Vol. 81, 2/3264, p. 48.

[2] The Sydney Gazette, 4 July 1833, after reporting the evidence of the witnesses, and summarising the arguments of counsel recorded the following:

"His Honor read over the declaration, and called the attention of the jury to that part of the evidence which affected the defendant's plea of not guilty, and submitted the case to the following points:- 1st, had the words charged in the declaration been spoken by the defendant; and if so, were they spoken with a design to injure the character of the plaintiff or as a man smarting under the disappointments incident to litigation. He would observe that character was highly indispensable to every professional gentleman, as much so as to any other individual; and it became him to repel any attack made upon it. As to the amount of damages which should be awarded, that was peculiarly within their province; they would weigh, as men who sat under a solemn obligation to administer justice, and as men of the world, all the circumstances of the case, and return a verdict accordinglp. [sic] His Honor then summed up, calling their attention to all the points which it was proper to bring more immediately under their consideration; and the case being put in their hands, they retired for about ten minutes and returned, when the Foreman stated that they had all concurred in the opinion that the defendant had spoken the words, but without a desire to injure the plaintiff's character - merely as common abuse - and they wished to ask the Court if, under that circumstance, they were bound to return a verdict for the plaintiff.

"His Honor informed them that they were bound to return a verdict for the plaintiff; when they again -etired [sic] to consider the amount of damages, and returned in about five minutes with a verdict for plaintiff, damages one farthing."